Citation Nr: 0942681
Decision Date: 11/09/09 Archive Date: 11/17/09
DOCKET NO. 04-09 584 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to service connection for a psychiatric
disability, to include bipolar disorder and post traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Hancock, Counsel
INTRODUCTION
The Veteran had active service from October 1981 to February
1982, and from November 1982 to March 1988.
This appeal initially come before the Board of Veterans'
Appeals (Board) from a February 2002 rating decision of the
Department of Veterans Affairs (VA), Regional Office (RO) in
Chicago, Illinois, which reopened the Veteran's claim for
service connection for bipolar disorder and denied the claim
on the merits.
In November 2006, the Board, determining that new and
material evidence had been received to reopen the previously
denied claim, remanded the matter so that additional
development of the evidence could be conducted.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant
if further action is required.
REMAND
The Veteran claimed entitlement to service connection for
depression in May 1988. The RO denied this claim in March
1989, characterizing the claim as entitlement to service
connection for adjustment disorder with mixed emotional
features. The Board here observes that adjustment disorder
with depression was diagnosed during the Veteran's active
military service. The Veteran sought to reopen his claim for
"depression" in July 2001. See VA Form 21-4138. Several
VA outpatient medical records, dated in 1999, include
diagnoses of bipolar disorder and major depression. The
report of a January 2002 VA mental disorders examination
included a diagnosis of bipolar disorder, depressed. In
February 2002, the RO, while reopening the claim, confirmed
and continued the previous denial of service connection for
"bipolar disorder, depressed (previously rated as adjustment
disorder, with mixed emotional features)." The Veteran
perfected an appeal, and the Board, in November 2006, found
that new and material evidence had been received to reopen
the claim for entitlement to service connection for bipolar
disorder. The Board remanded the claim to enable additional
development of the evidence to be conducted.
Following the Board's November 2006 remand the Veteran, by
means of additional argument submitted to VA in November
2007, essentially claimed that his psychiatric problems for
which he sought service connection were related to his being
sexually assaulted in service. As part of this same
correspondence, consisting of many handwritten pages, he both
claimed to not have reported this to his superiors, and also
to have reported it (to the 13th area medical department).
He also claims that his wife was sexually assaulted by a
named staff sergeant, and that he first learned of this later
(he did not say when) from a named master sergeant.
Review of the VA psychiatric examination ordered as part of
the Board's November 2006 remand, conducted in June 2009,
shows that the Veteran provided his history of in-service
sexual assault to the examiner. This appears to be the first
time, based on review of the medical records on file dated
before this time, that he had so provided such a history to a
medical examiner. The examiner reported that he had reviewed
the Veteran's claims folder. The examiner noted that the
Veteran had been previously diagnosed with bipolar disorder
but was now seeking compensation for PTSD. The examiner also
observed that the Veteran had been treated during his
military service for adjustment disorder with depressed mood.
The examiner was requested to "identify all psychiatric
disorders and provide an opinion as to whether it is at least
as likely as not that the diagnosed disorder(s) is causally
related to [the Veteran's] military service." Following his
examination of the Veteran the examiner provided a diagnosis
of PTSD. He opined that it was more likely than not that the
Veteran had PTSD which was misdiagnosed as bipolar disorder
due to effects of methamphetamine & cocaine. He added that
the Veteran's in-service sexual assaults were the cause of
his PTSD, diagnosed as adjustment disorder in service.
In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United
States Court of Appeals for Veterans Claims (Court)
considered a case in which the Board had denied a claim for
service connection for PTSD where the Veteran specifically
requested service connection for PTSD, but the medical record
also included diagnoses of an anxiety disorder and a schizoid
disorder. The Board narrowly construed the claim and denied
upon the absence of a current diagnosis. The Court, in
vacating the Board's decision, pointed out that a claimant
cannot be held to a "hypothesized diagnosis - one he is
incompetent to render" when determining what his actual
claim may be. The Court further noted that the Board should
have considered alternative current conditions within the
scope of the filed claim. Id.
The Board has reviewed the case at hand and, while noting
that the fact pattern here is dissimilar to that in Clemons,
finds that Clemons is nevertheless somewhat applicable here.
Notably, while this claim has been adjudicated by the RO and
certified to the Board as a claim for service connection for
bipolar disorder, the Veteran has also been diagnosed with,
as indicated in the above-discussed medical records,
adjustment disorder (with mixed emotional features), major
depression, and PTSD.
As indicated under Clemons, these other diagnoses are to be
considered as part of the underlying claim. To date,
however, the RO has not adjudicated this claim so broadly as
to incorporate psychiatric diagnoses other than bipolar
disorder. The RO has also not provided adequate notification
addressing what is needed for a claim incorporating such
diagnoses. This is significant because the statutory and
regulatory provisions addressing PTSD claims, as contained in
38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), are different
from the provisions addressing other service connection
claims. See 38 C.F.R. §§ 3.303, 3.307, 3.309.
And, of significant note, are the special provisions of VA
Adjudication Procedure Manual M21-1 (M21-1), Part III,
regarding personal assault. Notice of these have not been
afforded the Veteran. M21-1 notes that: "Personal assault
is an event of human design that threatens or inflicts harm.
Examples of this are rape, physical assault, domestic
battering, robbery, mugging, and stalking." M21-1, Part
III, 5.14c. M21-1 identifies alternative sources for
developing evidence of personal assault, including private
medical records, civilian police reports, reports from crisis
intervention centers, testimonial statements from confidants
such as family members, roommates, fellow service members, or
clergy, and personal diaries or journals. M21-1, Part III,
5.14c(4)(a).
When there is no indication in the military record that a
personal assault occurred, alternative evidence, such as
behavior changes that occurred at the time of the incident,
might still establish that an in-service stressor incident
occurred. Examples of behavior changes that might indicate a
stressor include: visits to a medical or counseling clinic
or dispensary without a specific diagnosis or specific
ailment; sudden requests that the veteran's military
occupational series or duty assignment be changed without
other justification; lay statements indicating increased use
or abuse of leave without apparent reason; changes in
performance or performance evaluations; lay statements
describing episodes of depression, panic attacks or anxiety
with no identifiable reasons for the episodes; increased or
decreased use of prescription medication; evidence of
substance abuse; obsessive behavior such as overeating or
under eating; pregnancy tests around the time of the
incident; increased interest in tests for HIV or sexually
transmitted diseases; unexplained economic or social behavior
changes; treatment for physical injuries around the time of
the claimed trauma but not reported as a result of the
trauma; breakup of a primary relationship. M21-1, Part III,
5.14c(7)(a)-(o). See also 38 C.F.R. § 3.304(f)(3) (2009);
Patton v. West, 12 Vet. App. 272 (1999) (holding that certain
special M21 manual evidentiary procedures apply in PTSD
personal assault cases). Corrective notification action, as
well as further adjudication, is thus needed. 38 C.F.R.
§§ 3.159(b), 19.9.
While the Board again notes that in the course of the recent
VA mental disorders examination conducted in June 2009, at
which time the examiner seemed to relate the Veteran's
diagnosed PTSD to his having been sexual assaulted while in
the military, another examination here is needed, to follow
the Veteran having been provided the opportunity to
substantiate his claim of in-service sexual assault.
Here, the Board observes that while the VA examiner in June
2009 did not provide a diagnosis of bipolar disorder, bipolar
disorder had been diagnosed during the course of this appeal.
In McClain v. Nicholson, 21 Vet App 319 (2007), the Court
held that the requirement that a current disability be
present is satisfied when a claimant has a disability at the
time a claim for VA disability compensation is filed or
during the pendency of that claim, even though the disability
resolves prior to the Secretary's adjudication of the claim.
Under such circumstances, provided the resolved disability is
related to service, a claimant would be entitled to
consideration of staged ratings.
Accordingly, this case is REMANDED for the following action:
1. A letter should be sent to the
Veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A, the need
for additional evidence regarding the
claim on appeal, now characterized as
service connection for a psychiatric
disorder, to include bipolar disorder and
PTSD. This letter must inform the
Veteran about the information and
evidence that is necessary to
substantiate the claim, in terms of
38 C.F.R. §§ 3.303, 3.307, and 3.309, and
provide notification of both the type of
evidence that VA will seek to obtain and
the type of evidence that is expected to
be furnished by the Veteran.
The Veteran should be afforded the
opportunity to identify potential
alternative sources of information to
verify the claimed sexual assault as set
forth in M21-1, part III, 5.14(c). He
should be informed that these alternative
sources could include, but are not
limited to, private medical records;
civilian police reports; reports from
crisis intervention centers; testimonials
from family members, roommates, fellow
service members, or clergy; and copies of
any personal diaries or journals.
2. Following the above, the RO must make
a specific determination, based upon the
complete record, with respect to whether
the Veteran was exposed to a stressor(s)
in service, and if so, what was the
nature of the specific stressor(s). In
rendering this determination, the
attention of the RO is directed to the
law cited in the discussion above. If
official service records or alternative
records discussed in M21-1, Part III,
Sec. 5.14c corroborate the Veteran's
allegations of stressors occurring, the
RO should specify that information.
The RO should also indicate whether any
behavioral changes that occurred at or
close in time to the alleged stressor
incidents could possibly indicate the
occurrence of one or more of the alleged
in-service stressors and if so should
decide whether this evidence needs the
interpretation by a clinician. See M21-
1, Part III, 5.14c (9). In this regard,
the RO should comment on the January 1988
Physical Evaluation Board report, which
found that the Veteran was unfit for
military service, in part to his having
been diagnosed with adjustment disorder
with history of depression.
If the RO determines that the record
establishes the existence of a stressor
or stressors, the RO must specify what
stressor(s) in service it has determined
are established by the record. In
reaching this determination, the RO
should address any credibility questions
raised by the record.
3. Upon completion of the above, the RO
should schedule a comprehensive VA
psychiatric examination to determine the
diagnoses of all psychiatric disorders
that are present. If feasible, this
examination should be conducted by a
psychiatrist who has not previously
examined, evaluated or treated the
Veteran. The examiner should review the
entire claims folder, to include all of
the service treatment records, and all
post service VA medical records, to
include the examination reports dated in
December 1988, January 2002, and June
2009. A copy of this remand must be
provided to the examiner prior to the
examination.
The examiner should determine the true
diagnoses of any currently manifested
psychiatric disorder(s). Any diagnosis
must be based on examination findings,
all available medical records, complete
review of comprehensive testing for PTSD,
and any special testing deemed
appropriate. A multi-axial evaluation
based on the current DSM-IV diagnostic
criteria is required.
If a diagnosis of PTSD is deemed
appropriate, the examiner should specify
(1) whether each alleged stressor found
to be established by the record was
sufficient to produce PTSD; and (2)
whether it is at least as likely as not
that the current symptomatology is linked
to one or more of the in-service
stressors found to be established by the
record and found sufficient to produce
PTSD.
In addition, the examiner must comment on
the approximate date of onset and
etiology of any diagnosed psychiatric
disorder(s) as shown by the evidence of
record, and in so doing, the examiner
should attempt to reconcile the multiple
psychiatric diagnoses and/or assessments
of record based on his/her review of all
of the evidence of record, particularly
with respect to prior diagnoses of
bipolar disorder, major depression, and
PTSD.
The examiner should also provide an
opinion as to whether it is at least as
likely as not that any psychiatric
disorders diagnosed in the course of the
examination, other than PTSD, is/are
etiologically related to the Veteran's
period of active service.
Further, in line with the M21-1
provisions, the examiner is requested to
provide detailed medical analysis and
interpretation of the diagnoses found
present on examination in light of all
the evidence of record for the purpose of
addressing whether any behavioral changes
that occurred at or close in time to the
alleged stressor incidents could possibly
indicate the occurrence of one or more of
the alleged in-service stressors.
A complete rationale for all opinions
expressed must be provided. The copy of
the examination report and all completed
test reports should thereafter be
associated with the claims folder.
Note: The term "at least as likely as
not" does not mean within the realm of
medical possibility, but rather that the
medical evidence both for and against a
conclusion is so evenly divided that it
is as medically sound to find in favor of
a certain conclusion as it is to find
against it.
4. The Veteran is hereby notified that
it is his responsibility to report for a
scheduled VA examination and to cooperate
in the development of the claim. The
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38 C.F.R.
§§ 3.158, 3.655 (2009).
In the event that the Veteran does not
report for any scheduled examination,
documentation should be obtained which
shows that notice scheduling the
examination was sent to the last known
address. It should also be indicated
whether any notice that was sent was
returned as undeliverable.
5. Thereafter, the RO must review the
claims folder and ensure that the
foregoing development actions, as well as
any other indicated development, have
been conducted and completed in full. If
the response is deficient in any manner,
the RO must implement corrective
procedures.
6. Thereafter, the RO should complete
any additional development that is
indicated and readjudicate the issue of
entitlement to service connection for a
psychiatric disability, to include
bipolar disorder and PTSD. If the
benefit requested on appeal is not
granted, the RO should issue a
supplemental statement of the case, which
must contain notice of all relevant
action taken on the claim. A reasonable
period of time for a response should be
afforded.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by
the Court for additional development or other appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).